Could South Carolina give a prisoner sentence credit for donating bone marrow?

Plain-English summary

In 2007, a South Carolina senator asked whether proposed S. 417 could give a prisoner up to 60 days off a sentence for voluntarily donating bone marrow or blood-forming cells. The Attorney General concluded that the proposal appeared inconsistent with the federal National Organ Transplant Act of 1984. The opinion treated sentence credit as a benefit to the prisoner and therefore as “valuable consideration” for the donation. It also concluded that the transplant network's role meant the donation would affect interstate commerce.

The federal provision quoted in the opinion expressly included bone marrow as a human organ. The opinion did not assess a program offering donation without sentence credit.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Why did the AG object to giving sentence credit for bone marrow donation? A: The AG considered a sentence reduction a benefit to the prisoner, which made it valuable consideration under the federal prohibition discussed in the opinion.

Q: Did the federal prohibition cover bone marrow?
A: Yes. The federal definition of “human organ” quoted in the opinion expressly included bone marrow.

Q: Did the AG think a donation within South Carolina could affect interstate commerce? A: Yes. The opinion reasoned that hospitals and procurement organizations used a nationwide transplant network, so donation of bone marrow or blood-forming cells would affect interstate commerce.

Q: Did the opinion address all prisoner organ donations? A: No. It addressed proposed S. 417's exchange of a possible sentence deduction for a voluntary bone marrow or blood-forming cell donation.

Background and statutory framework

S. 417 would have awarded a prisoner who donated bone marrow or blood-forming cells up to 60 days of sentence credit. The opinion compared that proposal with the federal ban on transferring a human organ for valuable consideration for transplantation when the transfer affects interstate commerce. It quoted the statute's definitions and concluded that the proposed credit and the transplant network met those elements.

Citations and references

Federal statute: 42 U.S.C.A. Section 274(e).

Proposed bill: S. 417.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/february-15-2007/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/fair-m-2-15-07-os-8339-national-organ-transplant-ac.pdf

Original opinion text

February 15, 2007

The Honorable Mike Fair
Senator, District No. 6
211 Gressette Building
Columbia, South Carolina 29202
Dear Senator Fair:
In a letter to this office you questioned whether proposed legislation, S. 417, is in compliance with a provision of the National Organ Transplant Act of 1984, 42 U.S.C.A. Section 274(e). That provision states that “[i]t shall be unlawful for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce.” S. 417 states that
[n]otwithstanding another provision of law, a prisoner convicted of an offense against this State and sentenced to the custody of the Department of Corrections, including a prisoner confined in a local facility pursuant to a designated facility agreement authorized in Section 24-3-30, who voluntarily donates bone marrow or bloodforming cells during his period of incarceration is entitled to receive a deduction from the term of his sentence of up to sixty days. Pursuant to subsection (c)(1) of the federal provision cited above, the term “human organ” includes “bone marrow”. Also, pursuant to subsection (c)(2), the term “valuable consideration”
...does not include the reasonable payments associated with the removal, transportation, implantation, processing, preservation, quality control, and storage of a human organ or the expenses of travel, housing, and lost wages incurred by the donor of a human organ in connection with the donation of the organ. By subsection (c)(3), the term “interstate commerce” “...has the meaning prescribed for it by section 321(b) of Title 21.” The provision states
[t]he term “interstate commerce” means (1) commerce between any State or Territory and any place outside thereof, and (2) commerce within the District of Columbia or within any other Territory not organized with a legislative body.

The Honorable Mike Fair
Page 2
February 15, 2007
Therefore, for purposes of your question, it must be determined whether the donation of bone marrow by an incarcerated prisoner who then would receive a deduction of up to sixty days from his term of incarceration would constitute the unlawful transfer of a human organ for valuable consideration affecting interstate commerce. As set forth above, the term “human organ” specifically includes bone marrow for purposes of the federal prohibition. As to whether the receipt of a deduction from a period of incarceration constitutes “valuable consideration” for purposes of the federal prohibition, this office in a prior opinion, Op. Atty. Gen. dated January 11, 1996 stated that
[a] commonly-accepted definition of valuable consideration...[is that such] “consists of some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered, or undertaken by the other. An opinion of the Ohio Attorney General dated March 26, 1981 similarly concluded that the term “valuable consideration” means “...the acquisition of some legal right, interest, profit or benefit.” In the situation addressed by you, a prisoner who voluntarily donates bone marrow or blood-forming cells during his period of incarceration is entitled to receive a deduction from the term of his sentence of up to sixty days. In the opinion of this office, such a deduction from the term of a sentence would constitute a benefit accruing to the prisoner with the result that such would constitute “valuable consideration”. As to whether the donation of bone marrow or blood-forming cells by a prisoner would affect interstate commerce within the prohibition of the federal statute, as set forth in an opinion of the Kansas Attorney General dated March 17, 2000, Congress’ commerce power derives from the United States Constitution and its scope is not confined to the regulation of commerce between the states but may reach intrastate activities which interfere with or obstruct the exercise of this granted power. Therefore, intrastate activities are also to be examined with regard to any effect on interstate commerce. See also: Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) (inns and hotels catering to intrastate guests); Wickburn v. Filburn, 317 U.S. 111 (1942) (homegrown wheat). Arguably, the donation of bone marrow by a prisoner would also implicate intrastate activities involving interstate commerce. In dealing with the donations of organs pursuant to the National Organ Transplant Act, the Kansas Attorney General in the referenced 2000 opinion determined that
[i]nterstate commerce is affected when, upon receipt of a body part...(which would presumably include bone marrow)...an approved hospital or storage facility in the

The Honorable Mike Fair
Page 3
February 15, 2007
state contacts an organ procurement organization through the National Organ Procurement and Transplantation Network established by Congress to assist in the nationwide equitable distribution of organs. The Network was established pursuant to the National Organ Transplant Act...Interstate commerce is affected when body parts for human transplantation enter the Network established by Congress.... It was referenced that “(a)s a condition for receipt of medicare funds, hospitals are required to contact a regional organ procurement organization...and establish protocols for the identification of potential organ donors.” Consistent with the above, in the opinion of this office, as a result of the involvement of such a network, the donation of bone marrow or blood-forming cells by a prisoner would affect interstate commerce. In light of the conflicts with the National Organ Transplant Act as set forth above, in the opinion of this office, it appears that S. 417 would be inconsistent with such Act. If there are any questions, please advise. With kind regards, I am, Very truly yours, Henry McMaster Attorney General

By:

REVIEWED AND APPROVED BY:

______
Robert D. Cook
Assistant Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General